Summary: Mrs X complained about the Council’s handling of enforcement action against the developer of a site near her home. We have ended our investigation. This is because there is an ongoing planning enforcement investigation, and so it is not possible for us to determine the level of injustice the alleged fault may have caused Mrs X and her neighbours.

The complaint

1. Mrs X, who also complained on behalf of her neighbours, states the Council has failed to take enforcement action against the developer of a site near her home. She states the developer has not built the development in accordance with the approved plans and breached planning conditions. She also complained the Council has diverted a Public Right of Way.
2. Mrs X says the breaches of planning control have blighted the amenity of her and her neighbour’s homes.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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What I have and have not investigated

6. I have investigated Mrs X’s complaint about the Council’s handling of an ongoing enforcement case about the developer not complying with a condition of a planning application approved in 2020 (Application D).
7. I have not investigated Mrs X’s other complaints as she could have complained about them earlier. This applies to her concerns about matters addressed in a planning application decided by the Council in 2020 and to her concerns about it diverting a Public Right of Way which happened in 2015. These parts of her complaint are late and there is not enough reason to accept those parts of it for investigation now.

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How I considered this complaint

8. As part of my investigation I:
• Discussed the complaint with Mrs X and another resident and considered the complaint;
• Invited Mrs X to clarify her grounds of complaint in writing and to provide documents supporting her complaint;
• Made enquires of the Council and considered its response; and
• Set out my initial thoughts on the complaint in a draft decision statement and considered Mrs X’s comments in response.

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What I found

9. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
10. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
11. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
12. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework September 2023, paragraph 59)

What happened

13. In 2006 the Council approved an outline planning application (Application A), subject to conditions, for a large residential development near to Mrs X’s home.
14. In 2011 the Council approved variations to the outline permission (Application B), subject to conditions. The conditions required the developer to provide details of the building design, landscaping and drainage including ground levels, for the Council to approve.
15. Later in 2011 the Council approved the reserved matters (Application C) for the development, subject to conditions. The conditions included all the conditions set out in application B and that the development be carried out as per the drawings submitted in May 2011.
16. As part of the planning approval granted for the site a minor diversion of a local Public Right of Way (PROW Z) was required. The Council’s Legal Services Team completed the necessary steps including consulting the relevant parties and publishing details of the diversion in the local press.
17. In March 2015 PROW Z was diverted.
18. Between 2015 and 2018 Mrs X complained to the Council about the following matters:
• Elevated ground levels which she says increase the risk of flooding and reduce privacy;
• Failure to provide 2m of landscaping to improve the visual amenity;
• Failure to provide the 25m back to back distance between the houses;
• Houses effectively being three storeys high, which she says reduces light and privacy.
19. The Council investigated Mrs X’s concerns. It said the developer had recently submitted a planning application (Application D) seeking to rectify Application C so it accords with the “as built” situation both in relation to landscaping and building heights.
20. Mrs X complained to the Ombudsman about the Council’s consideration of her concerns. We discontinued our investigation because the Council had not yet decided Application D.
21. Application D was approved by the Planning Committee in 2020. The approval meant the development became lawful “as built”. The approval was also subject to a condition (hereafter referred to as the landscaping condition) requiring a landscaping scheme for gardens located in Road Y within the development. It said the scheme should be provided within three months of the decision and planting to be completed in the next planting season.
22. Throughout 2021, 2022 and 2023 the Council has been in contact with the developer regarding compliance with the landscaping condition.
23. The Council opened an enforcement investigation into the developer’s compliance with the landscaping condition as there remained properties in Road Y where a landscaping scheme was yet to be approved.
24. In 2022 Mrs X complained to the Council about the following matters:
• raised land levels at the development site;
• slab elevations not complying with the approved plans;
• the colour of the roof tiles are different to the approved plans;
• the surface drainage sewer system is different to the approved plans;
• house elevations are different to the approved plans; and
• non compliance with the landscaping plans (as per a condition of the approval for Application D).

She also complained the Council had diverted PROW Z.

25. The Council’s reply to Mrs X’s complaint explained that except for her concerns about noncompliance with the landscaping condition, all the matters she complained about were addressed by the approval of Application D, which gave approval to the scheme “as built”. It also said it followed the correct process when diverting PROW Z.
26. It also said the developer had only partially complied with the landscaping condition attached to Application D. It said that it had an open enforcement case against the developer, and it was working with them to achieve compliance with the condition.
27. Unhappy Mrs X complained to the Ombudsman.
28. In response to our enquiries the Council said:
• Some gardens in Road Y do not have a landscaping scheme approved and so the landscaping condition has not been complied with. This is because of existing planting or recently approved garden buildings and so they are not accepting planting now. The Council is keeping the matter under investigation.
• It may be the case that it decides it would not be expedient to enforce the landscaping condition on the outstanding gardens. This is because the planting or buildings installed by the owners provide similar screening to that sought by the condition. In such cases the Council would need to consider if enforcement action was expedient.
• It disagrees with Mrs X about many of the issues which she claims are breaches of planning control at the site. Nevertheless, all the other breaches referred to in her complaint were addressed in Application D which approved the development “as built”.
• It followed the correct process when it diverted a public right of way near the development. The diversion was approved in March 2015.

Finding

29. The Council has responded to concerns the developer has not complied with the landscaping condition attached to the approval of Application D. It is continuing to liaise with the developer to achieve compliance on the gardens where a landscaping plan has not been approved.
30. It is not possible for me to reach a decision about the Council’s handling of enforcement action about the developer not complying with the landscaping condition. This is because the enforcement action is ongoing and so I cannot assess the injustice to Mrs X and her neighbours until the planning process has run its course.

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Final decision

31. I have ended my investigation. The planning enforcement case is still ongoing and so it is not possible for me to decide the injustice caused to Mrs X and her neighbours by the alleged fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman